A pseudonymous blog about Canadian law and politics.
This blog should not be relied on as legal advice.

Friday, June 19, 2009

Thoughts on Binnie on Original Intent

Scalia and Binnie had a set-to on originalism at some forgotten conference half a decade ago. It can be found in (2004), 23 S.C.L.R. (2d).

Binnie acknowledges a heavy debt to his clerk, Patricia McMahon, an academic historian, and I don't think he was just being overly generous.

For the most part, it is reasonably sensible and just rejects a cartoon "original intent" school that no serious person supports anymore anyway. Binnie says he can see merit in Scalia's more sophisticated original semantic meaning views. He points out that nineteenth century courts did not look with favour on extrinsic evidence of what politicians thought they were doing when they enacted statutes, including the BNA Act, but of course Scalia hates that more than anybody.

Binnie notes that originalism has played a big role in the Canadian courts' interpretation of education rights and s. 96 (which constitutes the federally-appointed superior courts).

An originalism that is just about linguistic change won't have much effect on interpretations of a document written in 1982. The only significant change since then is that "sex" now just refers to the act and we would no doubt use "gender" in section 15 if it were written today.

Binnie's defence of the Motor Vehicle Act Reference is no good, though. (Perhaps in another post I'll say why._